Law Society v Auimatagi Ponifasio [2013] WSCA 6 (15 November 2013)

COURT OF APPEAL OF SAMOA

The Council of Samoa Law Society v Auimatagi Ponifasio [2013] WSCA 06

Case name: Council of Law Society v Auimatagi Ponifasio

Citation: [2013] WSCA 06

Decision date: 15 November 2013

Parties: COUNCIL OF SAMOA LAW SOCIETY (Appellant) a body duly established by Section 16 of the Law Practitioners Act 1976 and TUALA AUIMATAGI PONIFASIO (Respondent)

Hearing date(s): 12 November 2013

File number(s): CA09/13

Jurisdiction: Civil

Place of delivery: Mulinuu
Judge(s):
Justice Fisher
Justice Hammond
Justice Blanchard

On appeal from: (Supreme Court matter)

Order:
Representation:
S Leung Wai for Appellant
B Squire QC and S Ponifasio for Respondent

Catchwords:

Words and phrases:
Legislation cited:

Law Practitioners Act 1976
Cases cited:
Samoa Party v Attorney General [2010] WSCA 4
Environmental Defence Society Inc v South Pacific Aluminium Ltd (No.4) [1981] 1 NZLR 530
New Zealand Maori Council v Attorney General [1994] 1 NZLR 513 (PC).

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

FILE NO: C.A09/13

BETWEEN

COUNCIL OF LAW SOCIETY, a body duly established by Section 16 of the Law Practitioners Act 1976

Appellant

A N D:

TUALA AUIMATAGI PONIFASIO

Respondent

Coram: Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard

Counsel: S Leung Wai for Appellant

B Squire QC and S Ponifasio for Respondent

Hearing: 11 November 2013

Judgment: 15 November 2013

JUDGMENT OF THE COURT

Introduction

1. The appellant (“the Society”) appeals against a costs order made in the respondent’s favour. The order followed his successful judicial review application against the Society in relation to disciplinary proceedings.
   

Background

2. When the Society originally brought disciplinary proceedings against the respondent he admitted Charge 1. The Disciplinary Tribunal found Charge 2 proved and Charge 3 not proved. It dismissed Charge 4.
3. The respondent appealed to this Court where the Tribunal’s findings were set aside. This Court’s decision did not affect the validity of the existing charges which remained outstanding. The Society issued an interim suspension order against the respondent. In a decision of 31 May 2012 the Chief Justice set aside the interim suspension due to procedural unfairness, invalidity of reasons, inappropriate treatment of relevant and irrelevant considerations, and failure to comply with the compositional requirements for a valid tribunal.
4. In giving his substantive decision the Chief Justice reserved costs. After receiving memoranda from both parties, he awarded the respondent two-thirds of actual costs. The result was expressed as “$39,952.80 awarded to Senior Counsel for the Applicant” and “$8,072 awarded to Junior Counsel for the Applicant”. The decision was not accompanied by reasons.

The Appeal

5. In this Court the Society advanced a number of grounds in support of the contention that it should not have to pay costs. With one exception we do not think it necessary to traverse these. A trial Judge’s discretion over costs is particularly broad. An appellate court will decline to interfere in the absence of compelling reasons for doing so.
6. The one ground of significance in the present case is that the Society was representing the public interest. We now discuss that ground further.

Public interest representation in general

7. It is well established that representing the public interest in litigation can in some circumstances rebut a costs liability that would otherwise follow – see Samoa Party v Attorney General [2010] WSCA 4 (7 May 2010) at paragraph 57; Environmental Defence Society Inc v South Pacific Aluminium Ltd (No.4) [1981] 1 NZLR 530 and New Zealand Maori Council v Attorney General [1994] 1 NZLR 513 (PC).
   
8. In this case the Society is a non-profit making organisation which exists to protect the public interest as well as the interests of lawyers. Its functions are defined in s 13 of the Law Practitioners Act 1976 as follows:

13. Functions of Law Society – The Law Society shall have the following functions:

(a) to promote and encourage proper conduct among members of the legal profession;

(b) to suppress illegal, dishonourable, unprofessional, and improper conduct by practitioners;

(c) to preserve and maintain the integrity and status of the legal profession;

(d) to provide, promote, and encourage opportunities for the acquisition, development, and diffusion of legal knowledge;

(e) to promote and encourage the maintenance of the rule of law;

(f) to consider and suggest amendments of the law;

(g) to provide for, promote, and encourage the amicable settlement of professional differences;

(h) generally to protect the interests of the legal profession and the interests of the public in relation to legal matters.

9. It will be seen that s 13(a) to (c) and (h) together require the Society to maintain professional standards in the interests of the public as well as the profession in general. Indeed, the disciplinary function itself is primarily one carried out for the protection of the public. It has been pointed out that:

“The main purpose served by disciplinary proceedings – which informs both the way in which the gravity of the misconduct is determined, and what factors influence the disciplinary sanction imposed – is protective. Disciplinary proceedings aim to protect members of the public from misconduct by lawyers. This recognises the public interest in the integrity of members of the profession, a New South Wales judge branding the protective function as ‘recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services. Closely allied to the protective object, professional discipline also aims to safeguard the reputation of the profession, which is more important than the fortunes of any individual member’. – Lawyers’ Professional Responsibility GE Dal Pont Lawbook Co Fourth Edition at paragraph 23.20.

Application to this case

10. In this case the Society was called upon to respond to a complaint by a client of the respondent. In the discharge of its duties under s 13 it commenced disciplinary proceedings. It has pursued them ever since before its Disciplinary Tribunal and before the Courts.
11. There have been well-founded criticisms of some of the procedural choices made by the Society along the way. But there is no evidence that it was ever attempting to do anything other than discharge its responsibilities to the public and the profession.
12. The proceedings giving rise to the present costs ruling were concerned with the way in which the Society should go about interim suspensions under s 38 of the Law Practitioners’ Act. As the Chief Justice observed in his substantive judgment, this was the first case involving the exercise of the powers conferred by s 38 to come before the Supreme Court in Samoa. All will doubtless benefit from the guidance now available in the judgment.
13. Also relevant to costs is the size and nature of the Samoa Law Society. There are approximately 125 members with practising certificates. Its limited funds are presently earmarked for laudable research and educational purposes which will ultimately be to the benefit of the public.
14. To be balanced against those interests are the interests of the respondent. He has succeeded in the relevant litigation. In the normal course he would be fully entitled to costs on a conventional basis.
15. Weighing those competing considerations we consider that the respondent ought to receive costs, albeit on a reduced basis. The reduced basis is to reflect the public interest element in the Society’s representation in the proceedings. We also take into account the parties’ uncertainty over disbursements and whether they were intended to be included in the award already made.
    

Result

16. The appeal is allowed. In substitution for the costs order in the Court below the Society must pay respondent a lump sum of $7,500 inclusive of disbursements.
17. There will be no order for costs in this Court.
    

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Blanchard